Trevino v. Price

Case: 22-51032 Document: 00516969508 Page: 1 Date Filed: 11/15/2023

United States Court of Appeals

for the Fifth Circuit

____________

United States Court of Appeals

Fifth Circuit

No. 22-51032

Summary Calendar FILED

____________ November 15, 2023

Lyle W. Cayce

Andrew Trevino, Clerk

Plaintiff—Appellant,

versus

Timothy Price, Homicide Detective, Austin Police Department,

Defendant—Appellee.

______________________________

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:22-CV-152

______________________________

Before King, Haynes, and Graves, Circuit Judges.

Per Curiam: *

Proceeding pro se and in forma pauperis, Andrew Trevino, Texas

prisoner #2119873, appeals the district court’s dismissal of his 42 U.S.C.

§ 1983 complaint following the grant of summary judgment in favor of the

sole named defendant, Detective Timothy Price. Trevino sought damages

_____________________

*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 22-51032 Document: 00516969508 Page: 2 Date Filed: 11/15/2023

No. 22-51032

for injuries he alleged resulted from Detective Price’s use of excessive force

in handcuffing him on November 9, 2021.

In his brief on appeal, Trevino does not challenge the district court’s

determination that the summary judgment evidence did not show that

Detective Price handcuffed him, much less used excessive force against him

while doing so, as he alleged in his complaint. Even given the benefit of liberal

construction, by failing to address the summary judgment evidence or any

aspect of the district court’s summary judgment determination, Trevino

appears to have abandoned any challenge to the sole issue on appeal. See

Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995; Yohey v. Collins, 985 F.2d

222, 224-25 (5th Cir. 1993); see also Brinkmann v. Dallas Cty. Deputy Sheriff

Abner, 813 F.2d 744, 748 (5th Cir. 1987) (stating that this court “will not raise

and discuss legal issues” that an appellant “has failed to assert”).

Nevertheless, assuming he has not abandoned a challenge to the summary-

judgment ruling, he has not shown a genuine dispute as to any material fact.

Summary judgment is appropriate if the record discloses “that there

is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). We review “the

grant of summary judgment de novo, applying the same standards as the

district court.” Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010) (internal

quotation marks and citation omitted). When, as in this case, a § 1983

defendant pleads qualified immunity in a summary judgment motion, the

plaintiff has the burden to show that the defense is unavailable. Trent v.

Wade, 776 F.3d 368, 376 (5th Cir. 2015). To satisfy this burden, the plaintiff

must show that there are material factual disputes regarding whether the

defendant violated a constitutional right and whether the right was clearly

established at the time of the alleged misconduct, such that every reasonable

official would understand that the misconduct violated the right. See Baldwin

v. Dorsey, 964 F.3d 320, 325-26 (5th Cir. 2020).

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No. 22-51032

The competent summary judgment evidence before the district court,

including video evidence of Trevino’s handcuffing and re-cuffing with two

pairs of handcuffs for his comfort, “blatantly contradict[s]” and “utterly

discredit[s]” Trevino’s § 1983 allegation that Detective Price used excessive

force in handcuffing him. Hanks v. Rogers, 853 F.3d 738, 744 (5th Cir. 2017)

(internal quotation marks and citation omitted). Indeed, the video evidence,

which is consistent with the affidavits submitted, unambiguously shows that

it was a uniformed patrol officer—and not Detective Price—who handcuffed

Trevino. None of the evidence shows the patrol officer using force, much

less excessive force, or engaging in any malicious conduct when handcuffing,

or re-cuffing, Trevino. See, e.g. Glenn v. City of Tyler, 242 F.3d 307, 314 (5th

Cir. 2001) (concluding that officer’s handcuffing of plaintiff, which caused

the plaintiff’s hand to become swollen, did not amount to excessive force

because the plaintiff did not allege that the officer acted maliciously, and

“handcuffing too tightly, without more, does not amount to excessive

force”). To the contrary, the video evidence clearly shows that the

interaction between Trevino and the officer was calm and cordial and that

Trevino was handled courteously and without force by Detective Price.

Because the competent summary judgment evidence does not show a

genuine dispute as to any material fact regarding whether Detective Price

handcuffed Trevino or violated Trevino’s constitutional right by using

excessive force, summary judgment was proper. Accordingly, the district

court’s judgment is AFFIRMED. Trevino’s motion for monetary damages

is DENIED.

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